KNOLLWOOD COUNTRY CLUB

National Labor Relations Board - Board Decisions

Mar 8, 2017

365 NLRB No. 22 (N.L.R.B. 2017)

365 NLRB No. 22
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Knollwood Country Club and Unite Here Local 100.
Cases 02–CA–150410, 02–CA–150571, 02–CA–
151405, and 02–CA–162251
March 8, 2017
DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
On June 9, 2016, Administrative Law Judge Raymond
P. Green issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed limited exceptions and an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions,1 as modified below, to modify the
remedy, and to adopt the judge's recommended Order as
modified and set forth in full below.2
The issues in this case arise from several labor cost-
saving measures unilaterally undertaken by Respondent
Knollwood Country Club in 2015, during the term of a
multiemployer contract with Charging Party UNITE
HERE Local 100 for a bargaining unit including seasonal
food service workers at the Respondent’s country club.
For the reasons stated by the judge, we affirm his find-
ings that the Respondent violated Section 8(a)(5) and (1)
of the Act by ceasing to make contributions to the Un-
ion’s pension fund after December 2014 and to its health
fund after June 2015, and that the Respondent violated
Section 8(a)(1) of the Act by threatening to call, and then
calling, the police on April 16, 2015, when laid-off em-
ployees visited the Respondent’s facility to concertedly
protest the Respondent’s failure to recall them to work.
As discussed below, we also agree with the judge that the
Respondent violated Section 8(a)(5) and (1) by unilater-
ally subcontracting bargaining unit work without giving
the Union prior notice and an opportunity to bargain, and

1 In the absence of exceptions, we adopt the judge’s dismissal of the
complaint’s allegation that the Respondent unlawfully failed to grant
union representatives access to its facility. Also in the absence of ex-
ceptions, we affirm the judge’s conclusions that the Respondent unlaw-
fully failed to deduct dues and remit them to the Union on behalf of
eligible employees and that it unlawfully failed to fully and timely
supply information requested by the Union on April 22 and 29 and July
24, 2015.
2 We have amended the remedy and modified the judge’s recom-
mended Order consistent with our legal conclusions herein and with the
Board’s standard remedial language. We have substituted a new notice
to conform to the Order as modified.
by modifying the collective-bargaining agreement’s sen-
iority recall provision without the Union’s consent. But
as briefly discussed below, we reverse, on due process
grounds, the judge’s conclusions that the failure to recall
employees by seniority was also unlawful on a separate
unilateral change theory and that the Respondent unlaw-
fully laid off employees out of seniority order.
The bargaining unit includes three classifications of
food service employees working for the Respondent:
“regular employees,” who are entitled to contractual ben-
efits including health and benefit fund contributions;
“summer employees,” who are hired to work between
April 1 and October 31, are not required to become union
members, and do not receive most contractual benefits;
and “extra employees,” hired on a temporary basis to
substitute for regular employees or hired on an occasion-
al event basis. The different classifications reflect the
seasonal nature of the Respondent’s food service opera-
tions. It normally offers no regular food service between
January 2 and April 1. Prior to 2015, it would lay off all
regular employees by January. For special club events
held between January and April, the Respondent would
offer these laid-off unit employees the opportunity to
work on a per job basis. The Respondent would then
recall the regular employee work force for the resump-
tion of full food service operations in April. After this
recall, it would hire summer employees for the busy sea-
son.
In 2015, however, the Respondent departed from past
employment practices. It utilized temporary workers
provided by Mack Staffing Services to perform unit work
at special parties during February and March. It em-
ployed summer employees, rather than recalling any reg-
ular employees, to perform all unit work between April
and August. Then, in August, it laid off these summer
employees and arranged for them to be hired by Mack
Staffing to continue to do the same work they had per-
formed as unit employees. During and after August, the
Respondent also recalled several laid-off regular em-
ployees to work side-by-side with former unit employees
now employed by Mack Staffing.
The unilateral change subcontracting violation
It is uncontested that the Respondent did not give the
Union notice and an opportunity to bargain prior to using
Mack Staffing employees to perform unit work. Absent
establishing that it was privileged to act unilaterally, the
Respondent had a statutory obligation, and the Union a
corresponding statutory right, to bargain about the deci-
sion to subcontract unit work. Fibreboard Paper Prod-
ucts Corp. v. NLRB, 379 U.S. 203, 210–212 (1964); Mi
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Pueblo Foods, 360 NLRB No. 116, slip op. at 1 (2014).3
A waiver of statutory rights is not to be lightly inferred
but instead must be “clear and unmistakable.” See
Provena St. Joseph Medical Center, 350 NLRB 808
(2007); Metropolitan Edison Co. v. NLRB, 460 U.S. 693,
708–709 (1983). The Respondent argues that the Union
waived its right to bargain over the subcontracting by
agreeing to a contractual management-rights clause re-
serving the Respondent’s right to “discontinue, lease or
relocate services or operations in whole or in part, or to
discontinue performance of services or operations by
employees of the Club.” We reject this argument be-
cause the language in the management-rights clause re-
ferring to discontinuation of services or operations does
not even remotely, much less clearly and unmistakably,
authorize the unilateral conduct the Respondent engaged
in here, which amounted to a combination of replacing
some unit employees with staffing agency employees,
arranging for laid-off unit employees to be rehired by the
staffing agency to continue providing the same services
they had previously provided, and belatedly recalling
some “regular” unit employees to work side-by-side with
staffing agency employees to perform unit work. While
some individual unit employees were replaced at times
by workers from Mack Staffing, no “services or opera-
tions by employees of the Club” were discontinued. Ab-
sent waiver by the Union of its right to bargain, the Re-
spondent’s subcontracting in these circumstances violat-
ed Section 8(a)(5) and (1) of the Act.4

3 The Respondent does not except to the judge’s finding that its de-
cision was a mandatory subject of bargaining.
4 We reject the Respondent’s argument, and any implication in the
judge’s decision, that the question of whether the Respondent unlawful-
ly unilaterally changed terms and conditions of employment turns on
whether or not the Respondent had a “sound arguable basis” for its
position that the contract authorized it to displace unit employees with
workers provided by Mack Staffing Services.
For the reasons set forth in Provena St. Joseph Medical Center, su-
pra at 812–815, we also reject the Respondent’s suggestion that the
“contract coverage” standard applied by some United States courts of
appeals should govern. See, e.g., NLRB v. U.S. Postal Service, 8 F.3d
832, 836–837 (D.C. Cir. 1993) (where an employer acts “pursuant to a
claim of right under the parties’ agreement,” the resolution of the
charge requires interpreting the contract to determine whether it “co-
vers” the employer’s conduct, i.e., whether the parties have “negoti-
at[ed] contract terms that make it unnecessary to bargain over subse-
quent changes in terms or conditions of employment.”); Chicago Trib-
une Co. v. NLRB, 974 F.2d 933 (7th Cir. 1992) (same).
Even under the “contract coverage” standard, however, we would
not find that the management rights contract language relied on by the
Respondent covers the conduct at issue. In Regal Cinemas, Inc. v.
NLRB, the court rejected the respondent movie operator’s argument that
language giving it rights “to change or eliminate existing procedures or
work” authorized it to “change or eliminate” unit projectionist work,
without first bargaining, by transferring that work to nonunit managers
and assistant managers. 317 F.3d 300, 312–314 (D.C. Cir. 2003).
The midterm contract modification violation
We also agree with the judge, as explained further be-
low, that the Respondent’s hiring of “summer employ-
ees” instead of recalling full-time regular employees
from a seasonal layoff violated Section 8(a)(5) and (1) of
the Act by modifying, without the Union’s consent, arti-
cle 8 of the parties’ collective-bargaining agreement.
Article 8 provides, in relevant part: “in the event of
layoffs . . . the most senior regular full-time employee
. . . shall be the first reemployed.” As previously stated,
“summer employees” are unit employees, but unlike reg-
ular full-time employees they are not required to become
members of the Union and are excepted from contractual
wage rates and most benefits. Until 2015, they were only
employed after the recall of the full complement of regu-
lar employees in the beginning of April.
Section 8(a)(5) and (1) and Section 8(d) of the Act
prohibit an employer from modifying terms and condi-
tions of employment established by a collective-
bargaining agreement during the agreement’s term with-
out the union’s consent. See, e.g., Rapid Fur Dressing,
278 NLRB 905, 906 (1986); Oak Cliff-Golman Baking
Co., 207 NLRB 1063, 1063–1064 (1973), enfd. mem.
505 F.2d 1302 (5th Cir. 1974), cert. denied 423 U.S. 826
(1975). When an employer defends against a midterm
modification allegation by arguing that the contract did
not prohibit its challenged conduct, the Board will not
ordinarily find a violation if the employer’s contractual

Further noting the absence of any affirmative evidence of specific
discussions during the parties’ negotiations tying the disputed transfer
of unit work to the management rights language, the court stated that it
was “loath to conclude that a union would knowingly agree to a clause
that would effectively permit the employer to unilaterally extinguish
the bargaining unit.” Id. at 313. As in Regal Cinemas, the Respond-
ent’s interpretation of the contract here would permit it to unilaterally
extinguish the bargaining unit by transferring unit work to nonunit
workers. Also as in Regal Cinemas, the literal language of the man-
agement rights clause referring to a discontinuation of services or oper-
ations does not support this interpretation, and there is no affirmative
evidence from multiemployer negotiations that the parties intended this
language to apply to the actions taken by the Respondent. Thus, even
under a contract coverage analysis, we would conclude that the Re-
spondent’s conduct here was not “covered by” the contract.
Acting Chairman Miscimarra believes that the management-rights
clause clearly and unmistakably waives the Union’s right to bargain
over a subcontracting action that results from an actual discontinuance
of performance of services or operations by its employees. However,
he agrees with his colleagues that the Respondent did not, in fact, “dis-
continue performance of services or operations” by its employees:
rather, it continued to employ some unit employees, either summer or
regular, at the same time that it arranged to have nonunit subcontractor
employees perform the same unit work. Because Acting Chairman
Miscimarra agrees with his colleagues that the Respondent’s unilateral
changes were unlawful under either the “clear and unmistakable waiv-
er” or the “contract coverage” standard, he does not reach or rely on his
colleagues’ rejection of the latter standard.
KNOLLWOOD COUNTRY CLUB 3
interpretation has a “sound arguable basis.” Bath Iron
Works Corp., 345 NLRB 499, 501–502 (2005), enfd. sub
nom. Bath Marine Draftsmen’s Assn. v. NLRB, 475 F.3d
14 (1st Cir. 2007); see also American Electric Power,
362 NLRB No. 92, slip op. at 1 (2015) (applying Bath
Iron Works).5 In interpreting a collective-bargaining
agreement to evaluate the basis of an employer’s contrac-
tual defense, the Board gives controlling weight to the
parties’ actual intent underlying the contractual language
in question. See Mining Specialists, Inc., 314 NLRB
268, 268 (1994).6 To determine the parties’ intent, the
Board examines “both the contract language itself and
relevant extrinsic evidence, such as a past practice of the
parties in regard to the effectuation or implementation of
the contract provision in question, or the bargaining his-
tory of the provision itself.” Id. at 268–269; see also
Resco Products, Inc., 331 NLRB 1546, 1548 (2000).
The Respondent contends that the contract provision at
issue has no bearing on its hiring of summer employees
because hiring summer employees, who may not previ-
ously have worked for it, is not “reemploying” anyone.
But, in context, the phrase “the first reemployed” reason-
ably refers only to the first employee to begin work after
the seasonal shutdown, whether or not that individual
previously worked for the Respondent. Article 8 is a
fairly standard provision that provides some stability to
regular unit employees who are subject to seasonal
layoffs. We find no reasonable basis for the Respond-
ent’s view that the single word “reemployed,” in isola-
tion, allows it to circumvent the clear purpose of the pro-
vision and the protection it provides by simply replacing
its regular bargaining unit employees with new hires in-
stead of recalling them by seniority. There is no reason-
able likelihood that the parties actually intended to per-
mit any club, in any season, to eviscerate the basis of the
bargaining relationship by ceasing to employ union
members altogether while otherwise continuing opera-
tions unchanged. Moreover, seizing upon the word
“reemployed” in isolation to nullify the basis and pur-
pose of the contract runs against well-established princi-

5 Members Pearce and McFerran find it unnecessary to address the
issue of whether Bath Iron Works was correctly decided in light of
finding that the Respondent’s failure to recall laid-off unit employees
violated the Act for the reasons discussed below.
6 “It is well settled that the Board has the authority to interpret col-
lective-bargaining agreements in the course of deciding unfair labor
practice cases.” 314 NLRB at 268 fn. 5; accord: Healthbridge Man-
agement, LLC v. NLRB, 798 F.3d 1059, 1073 fn. 9 (D.C. Cir. 2015)
(citing NLRB v. C & C Plywood Corp., 385 U.S. 421, 429–430 (1967))
(“the Supreme Court long ago held that the Board is empowered to
interpret a collective bargaining agreement in the course of deciding an
unfair labor practice charge”)), enfg. 360 NLRB No. 118 (2014).
ples of contract interpretation.7 Thus, we find that “the
contract language itself” requires the recall of laid-off
regular employees by seniority prior to hiring summer
employees. See Mining Specialists, 314 NLRB at 269.8
We accordingly affirm the judge’s conclusion that the
Respondent violated Section 8(a)(5) and (1) within the
meaning of Section 8(d) by failing to recall regular full-
time employees in accordance with contractual seniority
provisions.9
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Specifically, having found that the Respondent violat-
ed Section 8(a)(5) and (1) when it utilized workers pro-
vided by Mack Staffing Services to perform work that
otherwise would have been performed by unit employees
without first notifying the Union and giving it an oppor-
tunity to bargain, we shall order the Respondent to re-
scind this unilateral change and to notify, and on request,
bargain with the union before implementing changes in
unit employees’ wages, hours, or other terms and condi-
tions of employment. Having found that the Respondent
violated Section 8(a)(5) and (1) within the meaning of
Section 8(d) by failing to abide by the contract provision
requiring recall of laid-off employees by seniority, we

7 See Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 279 (1956)
(“Like other contracts, [a collective-bargaining agreement] must be
read as a whole”); Regal Cinemas, Inc. v. NLRB, 317 F.3d at 313;
Sawmill Restaurant, 283 NLRB 537, 541 (1987) (rejecting contract
interpretation that “would defeat the principal purpose for which the
provision was included in the contract”); Foreign Trade Export Pack-
ing Co., 112 NLRB 1246, 1258–1259 (1955); see also RESTATEMENT
(SECOND) OF CONTRACTS § 202 (1981).
8 Moreover, uncontested testimony by Dennis Diaz—the Union’s
chief negotiator on multiple successive contracts with the 24-member
multiemployer group, including the Respondent—establishes that the
parties had discussed the question of whether clubs could hire summer
employees prior to recalling laid-off regular employees, and that “all
the 24 clubs, always recall the full-time employees first before they call
summer help.” Thus, extrinsic evidence of the parties’ bargaining
history and past practice is also inconsistent with the Respondent’s
interpretation of the contract. Mining Specialists, supra at 268–269.
9 In addition to finding that the Respondent’s failure to recall unit
employees by seniority unlawfully modified the contract, the judge
found that the same conduct independently violated Sec. 8(a)(5) and (1)
as a unilateral change in employees’ terms and conditions of employ-
ment. We reverse this finding on due process grounds because this
independent theory of an 8(a)(5) violation was not alleged in the com-
plaint, litigated at the hearing, or addressed in the General Counsel’s
posthearing brief. We also reverse on due process grounds the judge’s
conclusion that the Respondent violated Sec. 8(a)(5) and (1) by laying
off employees without abiding by the contract’s seniority provision and
without regard to seniority. The General Counsel neither alleged nor
litigated the illegality of this action.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
shall order the Respondent to abide by the contract by
recalling laid-off employees by seniority prior to hiring
or recalling any other employees to perform unit work.
We shall also order the Respondent to make all employ-
ees affected by either or both of these unlawful actions
whole for any loss of earnings or benefits suffered as a
result of this unlawful conduct.
Backpay for these violations shall be computed in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6
(2010). The Respondent shall compensate affected em-
ployees for the adverse tax consequences, if any, of re-
ceiving lump-sum backpay awards, and file with the Re-
gional Director for Region 2, within 21 days of the date
the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar year for each employee. See
AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016). The Respondent shall also compensate affected
employees for their search-for-work and interim em-
ployment expenses regardless of whether those expenses
exceed interim earnings. See King Soopers, Inc., 364
NLRB No. 93 (2016). Search-for-work and interim em-
ployment expenses shall be calculated separately from
taxable net backpay, with interest at the rate prescribed in
New Horizons, supra, compounded daily as prescribed in
Kentucky River Medical Center, supra.10
Having found that the Respondent violated Section
8(a)(5) and (1) within the meaning of Section 8(d) by
failing to deduct dues and remit them to the Union on
behalf of eligible employees without the Union’s con-
sent, we shall order the Respondent to make the Union
whole for any dues the Union would have received in
2015 absent the Respondent’s unlawful conduct, includ-
ing dues the Union would have received absent the Re-
spondent’s unlawful subcontracting and failure to recall
unit employees, with interest at the rate prescribed in
New Horizons, supra, compounded daily as prescribed in
Kentucky River Medical Center, supra, and without re-
couping the money owed for past dues from employees.11

10 For the reasons stated in his separate opinion in King Soopers,
Inc., supra, slip op. at 9–16 (2016), Acting Chairman Miscimarra would
adhere to the Board’s former approach, treating search-for-work and
interim employment expenses as an offset against interim earnings.
11 See Distler Construction Co., 363 NLRB No. 18, slip op. at 5 &
fn. 2 (2015). The reimbursement requirement will be limited to em-
ployees who authorized dues deductions, and will be offset by the
amount of any dues the Union collected over the compliance period
from employees covered by the dues payment order. Alamo Rent-A-
Car, 362 NLRB No. 135, slip op. at 1 fn. 1 (2015).
Having found that the Respondent violated Section
8(a)(5) and (1) by failing to remit contributions to the
Union’s pension fund after December 2014, and to its
health fund after June 2015, we shall order the Respond-
ent to make whole its unit employees by making all such
delinquent fund contributions, including contributions it
would have made but for its unlawful subcontracting and
failure to recall unit employees, and including any addi-
tional amounts due the funds in accordance with Merry-
weather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979).12
Further, the Respondent shall be required to reimburse
unit employees for any expenses ensuing from its failure
to make the required fund contributions, as set forth in
Kraft Plumbing & Heating, 252 NLRB 891, 891 fn. 2
(1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981). Such
amounts should be computed in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest at the rate
prescribed in New Horizons, supra, compounded daily as
prescribed in Kentucky River Medical Center, supra.
To the extent that an employee has made personal con-
tributions to a fund that are accepted by the fund in lieu
of the employer’s delinquent contributions during the
period of the delinquency, the Respondent will reimburse
the employee, but the amount of such reimbursement
will constitute a setoff to the amount that the Respondent
otherwise owes the fund.
Finally, having found that the Respondent violated
Section 8(a)(1) by threatening to call and calling the po-
lice in response to employees’ protected concerted activi-
ty, and that it violated Section 8(a)(5) and (1) by failing
and refusing to furnish the Union with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the collective-bargaining
representative of the Respondent’s unit employees, we

Acting Chairman Miscimarra would permit the Respondent to re-
coup from employees any dues amounts it pays to the Union. In his
view, the majority’s recoupment bar is punitive and therefore exceeds
the Board’s remedial powers under Sec. 10(c) of the Act. See Alamo
Rent-A-Car, supra, slip op. at 7–8 and fn. 15 (Member Miscimarra,
concurring in part and dissenting in part).
12 The Respondent’s failure to deduct and remit dues and to make
contributions to the funds unlawfully modified its contract with the
Union only during those periods in which the Respondent actually
employed eligible employees. However, the Respondent shall be re-
quired to make the Union and affected employees whole by remitting
dues and making contributions to the funds on its employees’ behalf for
all periods in 2015 during which it would have employed eligible em-
ployees absent its unlawful conduct.
Because the provisions of employee benefit fund agreements are
variable and complex, we leave to the compliance stage the question of
whether the Respondent must pay any additional amounts into the
benefit funds in order to satisfy our “make whole” remedy. Merry-
weather Optical Co., supra.
KNOLLWOOD COUNTRY CLUB 5
shall order the Respondent to cease and desist from this
conduct.
ORDER
The National Labor Relations Board orders that the
Respondent, Knollwood Country Club, Elmsford, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Changing the terms and conditions of employment
of its unit employees by utilizing workers provided by a
temporary staffing agency to perform bargaining unit
work without first notifying Unite Here Local 100 (the
Union) and giving it an opportunity to bargain.
(b) Making midterm modifications to its collective-
bargaining agreement with the Union without the Un-
ion’s consent, including by failing to recall laid-off unit
employees according to contractual seniority provisions,
by failing to deduct dues and remit them to the Union on
behalf of eligible employees, or by failing to make con-
tractually-required contributions to the Union’s health
and pension funds.
(c) Threatening to call or calling the police in re-
sponse to employees’ protected concerted activities.
(d) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the collective-bargaining
representative of the Respondent’s unit employees.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the unilateral changes in the terms and
conditions of employment of its unit employees.
(b) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
its employees in the classifications listed in schedule A
of the Agreement between the Union and the Federation
of Country Clubs.
(c) Make whole those employees affected by its use of
workers provided by a temporary staffing agency to per-
form unit work for any loss of earnings and other bene-
fits suffered by them in the manner sent forth in the
amended remedy section of this decision.
(d) Abide by the terms of the parties’ collective-
bargaining agreement by recalling laid-off employees by
seniority prior to hiring or recalling any other employees,
deducting and remitting dues to the Union on behalf of
eligible employees, and contributing to the Union’s
health and pension funds as required by the collective-
bargaining agreement.
(e) Make whole those employees affected by its fail-
ure to recall laid-off employees by seniority for any loss
of earnings and other benefits suffered by them in the
manner set forth in the amended remedy section of this
decision.
(f) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 2,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
year for each employee.
(g) Make the Union whole for any dues that the Re-
spondent failed to deduct and remit under the parties’
collective-bargaining agreement, in the manner set forth
in the amended remedy section of this decision.
(h) Make all delinquent payments to the Union’s pen-
sion and health funds and make the unit employees
whole for any expenses ensuing from its failure to make
such payments, including any additional amounts due to
the funds on behalf of unit employees, with interest, in
the manner set forth in the amended remedy section of
this decision.
(i) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(j) Within 14 days after service by the Region, post at
its Elmsford, New York facility copies of the attached
notice marked “Appendix.”13 Copies of the notice, on
forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.

13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since February 7, 2015.
(k) Within 21 days after service by the Region, file
with the Regional Director for Region 2 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. March 8, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT change your terms and conditions of
employment by using workers provided by a temporary
staffing agency to perform bargaining-unit work without
first notifying Unite Here Local 100 (the Union) and
giving it an opportunity to bargain.
WE WILL NOT make midterm modifications to our col-
lective-bargaining agreement with the Union without the
Union’s consent, including by failing to recall unit em-
ployees according to contractual seniority provisions, by
failing to deduct dues and remit them to the Union on
behalf of eligible employees, or by failing to make con-
tractually-required contributions to the Union’s health
and pension funds.
WE WILL NOT threaten to call or call the police in re-
sponse to your protected concerted activities.
WE WILL NOT refuse to bargain collectively with the
Union by failing and refusing to furnish it with requested
information that is relevant and necessary to the Union’s
performance of its functions as your collective-
bargaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the changes in your terms and condi-
tions of employment.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the classifications listed in
schedule A of the Agreement between the Union and the
Federation of Country Clubs.
WE WILL make you whole for any loss of earnings and
other benefits resulting from our unlawful use of workers
provided by a temporary staffing agency to perform unit
work, less any net interim earnings, plus interest, and WE
WILL also make you whole for reasonable search-for-
work and interim employment expenses, plus interest.
WE WILL abide by the terms of our collective-
bargaining agreement with the Union by recalling laid-
off employees by seniority before hiring or recalling any
other employees, deducting and remitting dues to the
Union on behalf of eligible employees, and contributing
to the Union’s health and pension funds as required by
the collective-bargaining agreement.
WE WILL make you whole for any loss of earnings and
other benefits suffered as a result of our unlawful failure
to recall regular employees by seniority, plus interest.
WE WILL compensate you for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards,
and wE WILL file with the Regional Director for Region
2, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
years for each employee.
KNOLLWOOD COUNTRY CLUB 7
WE WILL make the Union whole for any dues we failed
to deduct and remit under our collective-bargaining
agreement with the Union.
WE WILL make all delinquent payments to the Union’s
pension and health funds and WE WILL make you whole
for any expenses ensuing from our failure to make such
payments, including any additional amounts due to the
funds on your behalf, with interest.
KNOLLWOOD COUNTRY CLUB
The Board’s decision can be found at
www.nlrb.gov/case/02–CA–150410 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273–1940.
Audrey Eveillard, Esq., for the General Counsel.
Craig Bonnist, Esq. and Hugh Murray, Esq., for the Respond-
ent.
Jane Lauer Baker, Esq., for the Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case in New York, New York, on March 7 and 8, 2016. The
charges and amended charges were filed on April 16 and 21,
May 1, June 26, October 20, and December 14, 2015. The
initial complaint was issued on September 30, 2015. A second
consolidated complaint was issued on January 29, 2016. The
complaint was again amended at and after the hearing. In sub-
stance, the allegations are as follows:
1. That since on or about 2005, the Union has been recog-
nized by the Employer, in a multiemployer bargaining unit, as
the representative of its cooks (second and third), pantry, kitch-
en helpers, pot washers, dishwashers, waiters/waitresses,
bussers, bartenders, and golf course snack bar attendants but
excluding all other classifications. It is further alleged that the
most recent collective-bargaining agreement runs from Febru-
ary 1, 2014, to January 31, 2018.
2. That from about February 11, 2015, until about November
11, 2015, the Respondent, without giving notice to or an oppor-
tunity to bargain with the Union, subcontracted unit work to
Mack Staffing Services.
3. That the collective-bargaining agreement contains provi-
sions whereby the Respondent is obligated (a) to notify the
Union at least one week prior to any contemplated layoff or
cutback within the kitchen, bar, dining room or allied depart-
ments and (b) to apply seniority in the event of layoffs and/or
recalls.
4. That on or about April 1, 2015, after a seasonal layoff, the
Respondent failed to continue the contract provisions described
above by failing to recall full-time bargaining unit employees to
perform kitchen and dining room duties. It is further alleged
that the Respondent failed to comply with the seniority provi-
sions of the contract by laying off bargaining unit employees in
or about September 2015. The General Counsel alleges that by
failing to comply with the terms of the collective-bargaining
agreement and in the absence of consent by the Union, the Re-
spondent violated Section 8(a)(5) and Section 8(d) of the Act.
5. That notwithstanding article 3 of the collective-bargaining
agreement requiring the Respondent to deduct periodic dues,
assessments and initiation fees from employee wages and to
remit them to the Union, the Respondent, in violation of Sec-
tion 8(a)(5) and 8(d) has, since August 26, 2015, failed to do
so.
6. That since on or about August 14, 2015, the Respondent
has failed and refused to make contractually required contribu-
tions to the Unite Here Health Fund and the National Retire-
ment Fund on behalf of the bargaining unit employees. The
General Counsel alleges that inasmuch as these actions were
undertaken in violation of the collective-bargaining agreement
and in the absence of union consent, the Respondent violated
Section 8(a)(5) and 8(d) of the Act.
7. That contrary to Article 20 of the collective-bargaining
agreement the Respondent on or about April 16, 2015, in viola-
tion of Section 8(a)(5) and 8(d), refused to allow representa-
tives of the Union access to its facility to perform functions
relating to employee terms and conditions of employment. As
to this incident, it is further alleged that the Respondent inter-
fered with employee Section 7 rights by calling the police to
have them removed from the facility.
8. That since on or about April 22, 2015, the Respondent has
either refused to supply, or has failed to completely supply, or
has untimely supplied, the following information that was re-
quested by the Union.
(a) Events calendars for 2014 and 2015;
(b) Time cards for Local 100 bargaining unit employees for
March and April 2015 and to the date of the Respondent’s re-
sponse;
(c) Audited financial statements for 2014;
(d) Monthly profit and loss statements for the current and the
past 3 fiscal years;
(e) Disbursement Ledger for the current and the past 3 fiscal
years;
(f) Any agreements for leases, including amendments thereto,
relating to the operation or management of Respondent, the
land upon which Respondent is located and/or the building in
which Respondent is located in;
(g) Any agreements for construction, renovation or rehabilita-
tion of any of the facilities, premises and grounds for the cur-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
rent year and for the preceding 3 fiscal years;
(h) Respondent’s reports, financial or operations, provided to
members of Respondent in 2012, 2013, 2014.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
The Respondent admits and I find that it is an employer en-
gaged in interstate commerce within the meaning of Section
2(2), (6), and (7) of the Act. It also is admitted and I find that
the Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The employer operates a country club and golf course locat-
ed in Elmsford, New York. For a number of years it has recog-
nized the Union as the collective-bargaining representative of
its food service workers, (cooks, waiters, busboys, bar tenders,
etc.). As a member of the Federation of Country Clubs, a multi-
employer association created to bargain with the Union, the
Respondent is a party to a collective-bargaining agreement
running from February 1, 2014, to February 1, 2018.1
At the time of these events the Respondent’s manager was
Mauro Piccininni. Nelson Soracco was the Chairman of the
Board of Directors.
The Club, although open all year round, provides food ser-
vices for its members from around April 1 to January 2. (After
New Year’s Day). It typically employs a crew of regular kitch-
en, dining room and snack bar employees who are represented
by the Union. As of 2014, this consisted of 17 full-time regular
employees.
In addition to its normal day-to-day food service functions,
the Respondent offers its facilities for parties such as weddings,
birthdays, etc. When these are contracted for, the regular em-
ployees are typically given the opportunity to work. If a func-
tion is sufficiently large, the Respondent may hire additional
temporary employees to supplement its regular work force.
The busiest time for the Respondent is from June to the end
of August. Thereafter, bargaining unit work diminishes in
around October through November. The exceptions are
Thanksgiving, Christmas, and New Year, when parties are held.
Typically, the summer help gets laid off first and then the regu-
lar full-time staff starts to get laid off, usually around Novem-
ber and December. After January 1 and until March, the golf
course is closed, as is the pool. There are no member dining
room services during this period of time, although the club is
available for parties, such as birthdays, bar mitzvahs, weddings,
etc. In the past, when events take place during this fallow sea-
son, the regular full-time employees have been offered the op-
portunity to work at these events.
The regular full-time employees are normally called back to
work in March and before April 1. In the past, it has been the

1 The attorney who assisted the Association in negotiating this
agreement was Peter Pankin. The evidence shows that representatives
of the Respondent attended and participated in these negotiations.
normal practice for the club to hire summer employees who
typically start after April 1. As noted above, if there were func-
tions such as weddings that took place between January 1 and
April 1, the company offered these jobs to its regular full-time
staff.
The regular employees are paid in accordance with the pay
rates and terms of the collective-bargaining agreement. Thus,
in addition to receiving the contractual hourly pay rates, contri-
butions are made on their behalf to the Union’s health and pen-
sion funds. The regular employees are covered by a standard
union security and check off clause and the Union’s records
shows that such monies have been deducted and remitted to the
Union for many years.
The contract permits the company to employ persons for
summer employment between April 1 and October 31 in 2014,
2015 and 2017 and between March 20 and October 31 in 2016.
These summer employees are not required to become dues-
paying members of the Union; albeit they are required to pay an
“agency fee.” Summer employees, although paid at the con-
tract wage rates, are not covered by the pension or health plans.
Accordingly, the employer is not required to make contribu-
tions to those plans on behalf of the summer employees. Also,
under the terms of Section 5.1 of the contract, summer employ-
ees are not entitled to vacation, holiday pay, sick pay or seniori-
ty.
In reviewing this collective-bargaining agreement, it is obvi-
ous to me that the intent of the parties was to allow the employ-
er to hire persons for summer employment in order to supple-
ment but not replace the regular employees who are covered by
the agreement.
There are a number of other contract provisions that are rele-
vant to this case.
At article 6, the contract provides that no regular employee
who has completed his/her probationary period shall be dis-
charged, laid off, suspended, dispossessed or evicted without
just cause.
At article 8.2, the contract states; “The club may lay off em-
ployees by reason of business or seasonal requirements. Except
in the case of fire, the Club shall notify the Union office at least
one week prior to any contemplated regular or permanent layoff
or cutback of personnel within the kitchen, bar, dining room
and allied departments. The employees scheduled for layoffs
. . . shall be likewise notified, and in the event of such layoffs,
seniority shall prevail as follows: the most senior regular full-
time employee in each category or classification shall be the
last laid off and first re-employed after a layoff, except that the
Shop Steward shall be the last laid off and first re-employed
after a layoff . . . provided the persons remaining have the abil-
ity to do the work required. The Club shall notify the employ-
ees or the Union or pay one week’s wages at the straight time
rate in the event no notice has been given. Only written notice
will be considered sufficient.”
Article 17 deals with the subject of tips at special parties.
Basically, article 17.1 provides that where there is a party of at
least 20 persons, the Club agrees that the waiters, waitresses,
busboys and bartenders will receive gratuities in the amount of
10 percent of the total party check. Article 17.2 provides that
wait persons, bus persons and bartenders who are hired as ex-
KNOLLWOOD COUNTRY CLUB 9
tras from an agency to work at special contracted parties are not
entitled to any gratuities.
Article 20 provides that official representatives of the Union
shall be admitted to the Club’s premises at reasonable times to
observe the working conditions in connection with the perfor-
mance of the contract. It also provides that the Union is re-
quired to call at least 1 day before arrival.
Article 22 is a management rights clause. In pertinent part, it
states:
The rights of management which are not abridged by this
Agreement, shall include, but are not limited to: the Club’s
right to determine the prices and terms of providing services,
quality and types of meals, methods of operation, to drop or to
add a particular service or operation; the right to determine
and from time to time to re-determine the number, location
and types of its services or operations and the methods, pro-
cesses, materials, operations and services to be employed or
furnished, to discontinue, lease or relocate services of opera-
tions in whole or in part, or to discontinue performance of
services or operations by employees of the Club, to determine
the number or [sic] hours per day or per week services or op-
erations shall be carried on, to select and to determine the
number of employees required, to determine the classification
of and number of employees in each classification (if any), to
assign work to such employees in accordance with the re-
quirements determined by management, to establish and
change work schedules, or to layoff, terminate or otherwise
relieve employees from duty, to make and enforce rules for
the maintenance of discipline and safety and to suspend, dis-
charge, or otherwise discipline employees for any infraction
of any rule of the Club or for any other just cause. . . .
Article 28 contains a multistep grievance/arbitration process.
It provides that grievances must be filed and move to each next
stage within certain time limitations. In the event that no resolu-
tion is made at the last step of the grievance process, either
party has 30 days to submit a grievance to binding arbitration in
accordance with the rules of the American Arbitration Associa-
tion.
Article 29 contains what seems to be a somewhat unique
provision. In substance, this provision permits an employ-
er/signatory to present to impartial arbitrator evidence that the
wage and hour scales “will work unusual hardship . . . and af-
fect adversely the interest of the workers therein.” It permits the
arbitrator to allow an employer to modify the wage and hour
scales of the agreement.
It should also be noted that the word “subcontracting” is not
used in any part of the collective-bargaining agreement. That
is, the contract neither contains any type of provision that
would explicitly permit or restrict subcontracting. In order for
the Respondent to justify a conclusion that the management
rights clause waived the Union’s right to bargain over subcon-
tracting, we would have to construe other language as meaning
that unrestricted subcontracting was allowed.
The parties stipulated that for the years from 2013 to 2015,
the compilation of the regular full-time bargaining unit em-
ployees, numbering 17, was as follows:
Francisco Bendezu Iariel Burgos
Gavino Contreras Mauricio Diaz
Nicole Dixon Patricia Henry
David Huanca Michael Locastro
Ian Mapp Walter Ortega
Gina Quintero Marcelino Quintero
Christian Recio Atdhe Tahiraj
Rosannis Perez Tejada Segundo Tejada
Petula Williams
The evidence suggests that in late 2014, the Club was expe-
riencing some financial difficulties. Nevertheless, during nego-
tiations for a renewed collective-bargaining agreement, no one
representing the Respondent made any claims of financial dis-
tress. The collective-bargaining agreement was ratified on No-
vember 19, 2014.2
In or about December 2014, the Respondent obtained the
services of attorney Matthew Persanis because it sought advice
regarding what if any course of action it could take given its
asserted business problems.
On December 9, 2014, Persanis sent a letter to the Union ad-
vising that the Respondent was requesting a meeting pursuant
to the aforementioned article 29. He went on to state that the
Club had suffered a downturn in membership. He further as-
serted that; “if we do not hear from you by December 15, 2014,
we will assume you agree with our contention and we will re-
duce payments to employees.”3
On December 9, union representatives had a telephone con-
versation wherein Persanis stated that the Club was seeking
relief under article 29 because it was losing members and hav-
ing financial difficulties. The Union, by Diaz, requested that it
be provided with a list of the bargaining unit employees, a list
of the club’s membership, payroll records, and the schedule of
upcoming events.
On December 29, 2014, the Respondent provided some of
the requested information. It did not, however, provide its pay-
roll records and schedules. Accordingly, Diaz sent an email to
Persanis complaining about the inadequate submission of in-
formation.
On January 2, 2015, in accordance with past practice, the
Respondent closed for the season. And by that time, all regular
full-time employees had been laid off by the end of December.
The employees were not notified that these layoffs were intend-
ed to be permanent or anything other than the normal seasonal
layoffs.
The testimony of the Club’s manager, Piccininni, was that in
January 2015, he was instructed by Nelson Soracco to seek
advice from Persanis as to how the club could save some mon-
ey.
On January 14, 2015, Persanis sent an advice letter to the
Respondent. This letter, which was not objected to, stated as
follows:

2 Of course if the Respondent had claimed an inability to pay, dur-
ing the negotiations, it would have been required to turn over financial
information, if requested.
3 Although the letter states that there was a previous letter dated
November 24, 2014, the Union’s representatives testified that they
never received such a letter and the Respondent did not offer evidence
of its existence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
This memo is written as a response to your questions regard-
ing your staffing.
The first question was “Can you use outside vendors to staff
an event?”
The short answer is “yes.” According to your collective bar-
gaining agreement, page 14, Article 17, “special contracted
parties” it talks about outside people from an agency. So it
would seem to give you the authority to hire an outside agen-
cy to staff the party.
In addition, the “Management Rights” clause on page 16 spe-
cifically states that unless a right is expressly and explicitly
abridged by the agreement management retains that right. I
would argue that since nowhere in the agreement does it pro-
hibit the subcontracting of bargaining unit work you may do
so.
The next question had to do with layoffs; can you layoff the
staff and just staff on a temporary or summer only basis.
Again, I think the answer is “yes.” We must look at Article 8
on page 8, “Seniority and Layoff.” Section 8.2 gives you the
right to lay off employees by “reason of business or seasonal
requirements,” the only prohibition is that the employees must
be laid off by seniority. The article even talks about perma-
nent layoff and goes on to describe the method for laying off.
Section 8.5 states that the “Club’s shall continue to have the
right to establish and change employee schedules.” Article 8.3
(d) states that an employee loses his, her seniority after being
laid off for 6 months. Management Rights clause on page 16
allows you to “determine the prices and terms of providing
services, methods of operations, drop or add a service. There-
fore, laying off on a permanent basis is allowed.
Having answered these questions the last question left is “can
you staff with just summer employees?” the answer again is
“yes.” Summer employees are addressed in Article 5 on page
5. Summer employees may be hired between April 1 and Oc-
tober 31, for 2015. If an employee is a summer employee you
do not need to pay welfare or pension contributions for that
employee, you also do not need to pay the vacation holiday,
sick or seniority.
My advice in order to save money is to lay off your perma-
nent employees, hold out until April 1, 2015 to hire anyone
and let them go by October 31, 2015 so all you have is sum-
mer employees. You will save on all Fund payments, vaca-
tion, sick time, holiday pay.
Instead of seeking arbitration pursuant to article 29, whereby
the Respondent could have presented evidence of financial
hardship and asked for a reduction in wage rates, it chose in-
stead to follow the advice of Persanis. In this regard, the Club,
without notifying the Union, essentially went about substituting
its regular full-time bargaining unit work force with either a
subcontractor and/or the hiring of people it chose to describe as
summer employees, for whom it would not make any health or
pension contributions, nor make any union dues deductions.
In January 2015, Robert Mack of Mack Staffing Solutions
became aware that Knollwood was interested in utilizing a
temporary service company to staff its facility. He testified that
he arranged for a meeting with Tara Fallon, the Respondent’s
controller and that he met with Knollwood’s management in
late January. As a result of this meeting, Mack agreed to pro-
vide the Respondent with temporary employees on an “as need-
ed basis.”
On January 29, 2015, Mack sent a contract to the Respond-
ent. Despite the fact that the Respondent did not execute this
agreement, Mack began to provide temporary workers to
Knollwood starting on February 7, 2015. The evidence shows
that Mack continued to provide temporary workers to perform
tasks ordinarily performed by bargaining unit employees until
October 14, 2015.4 As a consequence, during the 2015 off
season, Knollwood had a number of parties and instead of of-
fering these jobs to its regular full-time staff as it had done in
the past, it utilized Mack Staffing to provide people to do this
work. In this regard, Patricia Henry testified that on an occa-
sion after January 1, 2015, she had a conversation with Piccin-
inni about her desire to work the parties scheduled in February
and March 2015. She also testified that when she thereafter
called Piccininni about working at one of the parties, he told
her that she wasn’t needed to work at these events and that the
Respondent did not want to use any union staff.
As noted above, the normal past practice was that the regular
full-time employees would be recalled to work from March and
prior to April 1 of each year. Thereafter, and in conformity with
the collective-bargaining agreement, the Respondent can and
has hired summer employees to supplement the regular full-
time staff. In my opinion, there can be no reasonable interpre-
tation of the labor agreement that would entitle the Respondent
to simply replace its regular full-time staff with summer em-
ployees only.
On March 15, 2015, Shop Steward Mapp phoned Michael
Aguilar, the executive chef, and asked when he was supposed
to return to work. Aguilar said he had no information as to
when the full-time staff would be recalled. Thereafter, on
March 27, 2015, Mapp made a visit to the club and when he
spoke to Piccininni, he later said that the Board of Governors
had not given him any information about when the regular crew
would be coming back. Mapp was then given a letter stating
that he had been indefinitely laid off.
It was stipulated that the 17 regular full-time employees pre-
viously listed, were not recalled from their seasonal layoffs
when the Respondent reopened its normal food service opera-
tions in April 2015. Indeed, none of those employees were
recalled to their former jobs before August 7, 2015.
The parties further stipulated that on or about April 1, 2015,
and thereafter, the Respondent hired 34 other employees to
perform bargaining unit work. With respect to this group, the
evidence showed that some had worked for the club during
previous summers, whereas some were newly hired employees.
The evidence also showed that some of these people continued
to be employed until January 2, 2016.
The evidence therefore establishes that with the exception of
a relatively small number of the regular full-time employees

4 GC Exhs. 7 and 8 comprise invoices from Mack Staffing Agency
to the Respondent for providing employees.
KNOLLWOOD COUNTRY CLUB 11
who were recalled in August, September, and November, the
majority of the people doing bargaining unit work during the
2015 season were either new hires, or people who had worked
only as summer workers in past seasons.5
In this respect, the evidence shows that in failing to recall its
full-time bargaining unit employees in March 2015, instead
hiring other workers to do their jobs, the Respondent not only
changed its past practice but breached the seniority provisions
of the collective-bargaining agreement. (Article 8.2 states inter
alia, that “the most senior regular full-time employee in each
category or classification shall be the last laid off and first re-
employed after a layoff.”)
I addition to the above, It was stipulated that prior to 2015,
the Respondent had, in accordance with the collective-
bargaining agreement, deducted periodic dues, assessments and
initiation fees from the wages of the 17 regular full-time bar-
gaining unit employees and had remitted such monies to the
Union. The parties stipulated that in 2015, the Respondent
ceased deducting dues, assessments or initiation fees from the
wages of bargaining unit employees. Finally, it was stipulated
that in July 2015, the Respondent ceased making payments on
behalf of any eligible employees for the contractually required
contributions to the United Here Health fund or to the National
Retirement Fund.
The evidence shows that all of these changes in past practice,
which also breached express provisions of the collective-
bargaining agreement, were taken without prior notification to
the Union and without obtaining the Union’s consent.
On April 6, 2015, the Union filed three grievances relating to
employer’s failure to recall the bargaining unit employees. And
over the next week and a half, the Union tried, without success,
to arrange a meeting with the Respondent or its attorney.
On April 16, 2015, union representatives met with some of
the regular employees at a diner and after some discussion, the
group decided to visit the club in order to talk about the Club’s
failure to recall them to work. When they arrived, Piccininni
met them outside and when union representative Diaz asked
when the workers could return to work, Piccininni said that
they would not be returning and told the group that if they
didn’t leave, he would call the police. At this point, the two
union representatives entered the premises and saw a group of
workers whom they didn’t recognize. When they went to speak

5 On August 7, the Respondent recalled full-time employee Michael
Locastro who resumed his employment on August 14. On August 14,
the Respondent recalled full time employee Ian Mapp and he returned
to work on August 26. On or about August 26, the Respondent recalled
full-time employees Patricia Henry, Gina Quintero, and Christian Re-
cio. It was stipulated that Henry returned to work on September 2, but
that Quintero and Recio did not return to work. On September 25, the
Respondent again laid off Henry and Mapp effective October 4. On
October 28, the Respondent again recalled Henry who returned to work
on October 29. On October 30, the Respondent again recalled Mapp
who returned to work on November 6. On November 26, the Respond-
ent recalled the following nine regular full-time bargaining unit em-
ployees who worked between November 26 and December 2: Francisco
Bendezu, Nicole Dixon, Gina Quintero, Walter Ortega, Marcelino
Quintero, Atdhe Tahiraj, Rosannis Perez Tejada, Segundo Tejada, and
Petula Williams.
to Piccininni in the latter’s office, they said that they wanted to
have a meeting about the grievances and were told that the
meeting was being held now. They demurred and said that they
wanted to set up a proper meeting. Piccininni responded that he
had called the police.
After exiting the building, the group of employees stayed
outside in the parking area and when the police showed up, the
union representatives explained that there was a labor dispute.
No one was arrested or forced to leave. Soon thereafter, the
two union representatives again went inside to talk to Piccininni
and Soracco where Diaz asked when the workers were going to
return to work. Soracco stated that they were not returning and
Piccininni said that summer employees were doing the work.
This was the first time that the Union or the employees were
advised that summer workers had been hired to replace them.
The collective-bargaining agreement at article 20, allows un-
ion representatives to be admitted to the Respondent’s premises
at reasonable time for a variety of purposes relating to working
conditions. Apart from an emergency, the contract requires the
Union to notify the company at least 1 day prior to arrival.
In the past, the 1-day notification provision has not always
been followed. And in this case, I would tend to characterize
the refusal of the company to recall all of its full-time employ-
ees as constituting an emergency.
On April 29, 2015, the Union requested information from the
Respondent. In pertinent part, the request was for the following:
(a) Events calendars for 2014 and 2015;
(b) Time cards for Local 100 bargaining unit employ-
ees for March and April 2015 and to the date of the Re-
spondent’s response;
(c) Audited financial statements for 2014;
(d) Monthly profit and loss statements for the current
and the past 3 fiscal years;
(e) Disbursement Ledger for the current and the past 3
fiscal years;
(f) Any agreements for leases, including amendments
thereto, relating to the operation or management of Re-
spondent, the land upon which Respondent is located
and/or the building in which Respondent is located in;
(g) Any agreements for construction, renovation or re-
habilitation of any of the facilities, premises and grounds
for the current year and for the preceding 3 fiscal years.
(h) Respondent’s reports, financial or operations, pro-
vided to members of Respondent in 2012, 2013, and 2014.
On July 24, 2015, the Union sent a follow-up letter in re-
sponse to the company’s communication dated June 16. This
letter stated:
1. Events calendars for 2013, 2014 and 2015 with all
events listed. The event calendars previously provided did
not show all events, only some events;
2. Time cards, punch cards, or sign-in sheets showing
the time that workers reported to or began work and the
time that the workers ceased working for 2013, 2014 and
2015 to date. Thus far, only payroll records were provided.
The employer is required to maintain accurate time rec-
ords. If the employer does not maintain time records,
please provide information as to the manner and method
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
by which the employer accurately records the time worked
of employees.
3. According to your email of June 16, 2015, you
claim to have provided in the box you dropped at the Un-
ion's office, monthly profit and loss statements for 2013,
2014, and 2015, monthly income and expenses for 2013,
2014, and 2015. The general ledger, cash receipts and dis-
bursements, and accounts receivable ledger for 2013,
2014, and 2015. You claim in your email that the same
documents are responsive to each of those categories of
requests. We have not been able to identify the documents
in your production that are responsive to those requests.
Please email me copies of the responsive documents or at
least email pages of the documents that you claim are re-
sponsive so that we can determine whether they are in-
cluded in the box and are sufficient.
4. Our records also indicated that you have not yet
provided responses to the following requests made in my
April letter to you:
a. Any agreements or leases, including amendments
thereto, relating to the operation or management of Knoll-
wood, the land upon which Knollwood is located and/or
the building in which Knollwood is located in.
b. Any agreements for construction, renovation or re-
habilitation of any of the facilities, premises, and grounds
of Knollwood including for improvements to the facilities,
premises, and grounds for the current year and for the pre-
ceding three (3) fiscal years.
5. Also, please provide any report, financial or opera-
tional, provided to the membership in 2012, 2013 and
2014.
The evidence shows that in response to the information re-
quests, the Respondent, starting in June 2015, provided some,
but not all of the information requested. Also some of the in-
formation was furnished substantially after the request.
After hiring a group of summer employees to replace most of
the bargaining unit members,6 the company made an arrange-
ment for the employees to be placed onto the payroll of Mack
Staffing Solutions. In August 2015, Robert Mack visited the
club for the purpose of interviewing the employees then work-
ing. Thereafter, these employees, who had originally been hired
by Knollwood, were put on Mack’s payroll.
On August 13, 2015, Attorney Persanis sent an email to the
Union which set forth the Respondent’s position as follows:
Please be advised that effective immediately Knollwood CC
is exercising its rights under the Collective Bargaining
Agreement, Article 22, Management Rights “. . . to discontin-
ue, lease or relocate services of operations in whole or in part,
or to discontinue performance of services or operations by
employees of the Club, . . .” the services provided by those
employees covered by the CBA between Local 100 and Fed-
eration of Country Clubs. Knollwood CC had a staff of 8,
which was reduced to 6 employees who had been performing
this work. Knollwood will now seek to outsource this work

6 As previously noted, some but not all of the regular full-time bar-
gaining unit employees were recalled starting in August 2015.
using leased employees or an outside vendor to provide these
services. It is our position that this shall stop all further back
pay liability from accruing.
III. ANALYSIS
The principle issues in this case involve the Respondent’s at-
tempt to replace all or most of the regular full-time bargaining
unit employees either with what are described as “summer”
employees or by outsourcing their work to a subcontractor.
This was done in an effort to save money by essentially seeking
to eliminate the requirement to pay the health and pension ben-
efits for full-time regular employees as required by the collec-
tive-bargaining agreement. (As noted above, the contract, alt-
hough requiring the company to pay summer employees at the
contract rates, does not require the company to make contribu-
tions on their behalf to the health or pension funds. Nor are
summer employees entitled to vacation pay, holiday pay, sick
pay or seniority.) Moreover, this was done without notification
to the Union and without affording it an opportunity to bargain.
With respect to some of the changes, the General Counsel
contends that they were made unilaterally and therefore violat-
ed Section 8(a)(5) of the Act. For example, the General Coun-
sel alleges that the Respondent violated Section 8(a)(5) by uni-
laterally and without offering to bargain, subcontracting out
bargaining unit work.
In other respects, the General Counsel alleges that certain of
the unilateral changes constituted mid-term modifications of the
existing labor agreement and therefore were also violative of
Section 8(d) of the Act. For example, it is alleged that by fail-
ing to recall laid-off employees in order of seniority, or by lay-
ing off employees out of seniority, the Respondent breached the
seniority and the layoff/recall provisions of the collective-
bargaining agreement. Also, by failing to make payments to
the Union’s pension and health care funds, it is alleged that this
too constituted an unambiguous mid-term modification of the
collective-bargaining agreement. Finally, it is alleged that by
failing to deduct dues and remit them to the Union as required
by the contract, the Respondent also violated Section 8(d).
As to the changes alleged as mid-term contract modifica-
tions, the General Counsel argues that the Respondent could
not make these changes without first obtaining the Union’s
consent. That is, offering to bargain about the changes would
not be enough.
Indeed, the General Counsel asserts that the Respondent, in
effect, repudiated the collective-bargaining agreement.
There is also the issue of whether or not the Respondent
failed to furnish relevant requested information to the Union.
Finally there is an issue relating to the events that took place
when the Union and employees visited the company on April
16, 2015.
The Subcontracting Allegations
With respect to subcontracting, there is no dispute that in
January 2015, the Respondent entered into an agreement with
Mack Staffing Solutions to provide employees who would be
assigned to do bargaining unit work. There is also no dispute
that the Respondent first started using Mack to provide such
workers on February 7, 2015, and continued to do so through-
out the remainder of 2015. The evidence shows that the Union
KNOLLWOOD COUNTRY CLUB 13
was not notified of the Respondent’s decision to subcontract
unit work until August 2015 and it is undisputed that the Re-
spondent never offered to bargain about its decision to subcon-
tract. 7
In Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964), the em-
ployer, for legitimate economic reasons, but without offering to
bargain, displaced its existing maintenance employees by sub-
contracting out their work to a third party. The Court stated;
The facts of the present case illustrate the propriety of submit-
ting the dispute to collective negotiation. The Company’s de-
cision to contract out the maintenance work did not alter the
Company’s basic operation. The maintenance work still had
to be performed in the plant. No capital investment was con-
templated; the Company merely replaced existing employees
with those of an independent contractor to do the same work
under similar conditions of employment. Therefore, to re-
quire the employer to bargain about the matter would not sig-
nificantly abridge his freedom to manage the business.
The issue of subcontracting and bargaining was obliquely
revisited by the Supreme Court in First National Maintenance
Corp. v. NLRB, 452 U.S. 666 (1981). In that case, which in-
volved the employer’s partial closing of its business, the Court
held that certain types of managerial decisions could be made
without bargaining about the decision, if the decision involved
a change in the scope and direction of the enterprise, even if it
had a direct effect on employment. The Court defined a test
that balanced an “employer’s need for unencumbered decision
making with the benefit of collective bargaining for labor man-
agement relations.” At footnote 22, the Court noted; “we of
course intimate no view as to other types of management deci-
sions such as plant relocations, sales, and other kinds of sub-
contracting, automation etc., which are to be considered on the
particular facts.” The Board in Dubuque Packing Co., 303
NLRB 386 (1991), set forth the criteria it would use to apply
the Court’s First National Maintenance decision. (Dubuque
involved an employer’s decision to relocate).
In Torrington Industries, 307 NLRB 809 (1992), the em-
ployer subcontracted work which resulted in the layoff of 2
bargaining unit employees who were replaced by independent
contractors. The Board concluded that subcontracting deci-
sions similar to those in Fibreboard were mandatory subjects of
bargaining and did not require the burden shift test utilized in
Dubuque Packing Co., 303 NLRB 386 (1991), even if the deci-
sion was not motivated by labor costs. That is, the Board con-
cluded that based on the Supreme Court’s decision in First

7 The charge in 02–CA–150410 was filed on April 16, 2015, and it
alleged that the Respondent failed and refused to recall the entire bar-
gaining unit from winter layoff upon the Club’s reopening; hired new
employees to replace bargaining unit members; and effectively repudi-
ated the collective bargaining agreement. Since the failure to rehire was
caused at least in part by the company’s use of a subcontractor starting
on February 7, 2015, the complaint’s allegation that the Respondent
unilaterally subcontracted out bargaining unit work is closely related.
And since the answer filed on October 13, 2015, admits that the Re-
spondent received this charge in April 2015, it is clear to me that it was
timely filed within the 6-month statute of limitations period set forth in
Sec. 10(b) of the Act.
National Maintenance, supra, the Court had already struck the
balance in favor of finding that decisions to subcontract re-
quired bargaining. Nevertheless, the Board did qualify its deci-
sion and stated:
We agree that there may be cases in which the non-labor cost
reason for subcontracting may provide a basis for concluding
that the decision to subcontract is not a mandatory subject of
bargaining. We do not reach that issue here, however, be-
cause the Respondent’ reasons had nothing to do with a
change in the “scope and direction” of its business. Those
reasons, thus were not matters of core entrepreneurial concern
and outside the scope of bargaining.
Subsequent to its decision in Torrington, supra, the Board
has continued to take the view that employers are required to
bargain about a decision to subcontract irrespective of whether
the decision was motivated by labor cost factors. For example
in Acme Die Casting, 315 NLRB 202 fn. 1 (1994), the Board
held that the Employer violated Section 8(a)(5) by not offering
to bargain about its decision to subcontract. It stated:
Contrary to the Respondent’s contention, the reasoning of
Torrington Industries . . . is not limited to situations in which
employees are laid off or replaced. Torrington simply recog-
nizes the principle, applicable in this case, that an employer’s
decision to subcontract is a mandatory subject of bargaining
when what is involved is the substitution of one group of
workers for another to perform the same work and not a
change in the scope and direction of the enterprise. There is
no evidence that the decision to subcontract constituted a
change in the scope and direction of Respondent’s business.
Indeed, the plant manager admitted that the subcontracting
permitted the Respondent to perform work of the same type
done by unit employees in the past while avoiding paying
overtime to those employees.
It is argued by the Respondent that the Union waived its
right to bargain over the decision to subcontract. In this regard,
the Respondent cites article 17 and article 22 of the agreement.
As to article 17, the Respondent claims that this permits the
Club to utilize employees who are hired as extras from an
agency to work at special contracted group parties. But I don’t
construe this as giving the employer a blank check to hire only
extras for group parties. This entire provision relates to the
subject of gratuities where there are parties with more than 20
guests. The point of the provision is that the regular bargaining
unit employees who are assigned to work at these parties will
receive tips equal to at least 10 percent of the check and that if
extras are hired to augment the regular staff, those people will
not share in the tips.
Article 22 is the management rights clause. It does not men-
tion subcontracting, albeit it does state that “the rights of man-
agement which are not abridged by this Agreement, shall in-
clude, but are not limited to . . . to discontinue, lease or relocate
services of operations in whole or in part, or to discontinue
performance of services or operations by employees of the
Club. . .”
I do not believe that a reasonable interpretation of this clause
can be read to include an unfettered right to subcontract out
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
bargaining unit work. For one thing, I am not really sure what
this language means and it looks to me like an exercise in poor
draftsmanship that occurred many years ago and has been car-
ried forward in successive contracts. For another thing, the
clause does not even mention subcontracting, which in the par-
lance of labor relations, is a term of art and well understood by
people who represent unions and employers. In my opinion, if
the parties at the bargaining table had meant to preclude bar-
gaining over subcontracting, I think they would have expressly
said so.
The issue here is not which is the better interpretation of the
contract. Rather, the question is whether there are provisions in
the contract that constitute a clear and unmistakable waiver of
the Union’s right to bargain over a decision to subcontract.
In Embarq Corp., a wholly-owned subsidiary of
CENTURYTEL, Inc., d/b/a Centurylink, 358 NLRB 1192,
(2012), the Board adopted the finding that an employer violated
Section 8(a)(5) by refusing to bargain over a decision to elimi-
nate work classification and consequently to discharge nine
cashiers. A Board majority found that neither the management-
rights clause nor the layoff section of the collective-bargaining
agreement constituted a clear and unmistakable waiver. In this
regard, the majority cited Provena St. Joseph Medical Center,
350 NLRB 808, 811–815 (2007), where the Board rejected the
“contract coverage” theory of waiver.
In my opinion, the contract provisions cited by the Respond-
ent do not constitute a clear and unmistakable waiver of the
Union’s right to bargain over a decision to subcontract unit
work. Nor is there any other evidence to suggest that during
bargaining or at any other time, by any other statements or
actions of the Union, did it manifest an intention to waive its
right to bargain over a decision to subcontract.
I therefore conclude that by subcontracting out bargaining
unit work commencing on February 7, 2015, without notifying
and affording the Union an opportunity to bargain about that
decision, the Respondent has violated Section 8(a)(5) and (1) of
the Act.
The 8(d) Allegations
In Milwaukee Spring Division, 268 NLRB 601, 602 (1984),
the Board stated:
Section 8(a)(5) and 8(d) establish an employer’s obligation to
bargain in good faith with respect to “wages, hours, and other
terms and conditions of employment.” Generally an employer
may not unilaterally institute changes regarding these manda-
tory subjects before reaching a good faith impasse in bargain-
ing . . . Section 8(d) imposes an additional requirement when
a collective-bargaining agreement is in effect and an employer
seeks to “modify . . . the terms and conditions contained in”
the contract: The employer must obtain the union’s consent
before implementing the change.
The Respondent argues that the Board does not have the au-
thority to adjudicate claims that a party to a collective-
bargaining agreement has breached the terms of the agreement
because Section 301 puts that power in the Federal courts or
where the parties have agreed to binding arbitration. Citing
NLRB v. Strong, 393 U.S. 357 (1969). Although acknowledg-
ing that the Board may interpret a collective-bargaining agree-
ment in the context of an unfair labor practice case, the Re-
spondent argues that it may not find a violation of Section
8(a)(5) when the party accused of a contract breach has a
“sound arguable basis” for its belief that the contract sanctioned
its action. Citing Bay Area Healthcare Group, 362 NLRB No.
94 (2015); Bath Iron Works, 345 NLRB 499, 502 (2005); and
Mine Workers v. NLRB, 257 F.2d 211, 214, 215 (D.C. Cir.
1958). See also NCR Corp., 271 NLRB 1212 (1984).
The issue therefore is whether the provisions of the contract
that are claimed to have been breached were subject to reason-
ably differing interpretations or were unambiguous. See for
example, Daycon Products Co., 360 NLRB No. 54 (2014).
In Oakland Physicians Medical Center, LLC d/b/a Doctors’
Hospital of Michigan, 362 NLRB No. 149 (2015), a Board
majority concluded that deferral to arbitration was inappropri-
ate and that an employer violated 8(a)(5) by changing, without
the Union’s consent, health insurance benefits, based on its
finding that the changes constituted mid-term modifications
within Section 8(d). With respect to the deferral question, the
majority reasoned that the agreement unambiguously stated that
the Respondent could not alter the contractually mandated pre-
mium co-share schedule and that the Union had to be given
notice of any plan design amendments. The majority concluded
that deferral was inappropriate because the applicable provision
was unambiguous.
In Mike-Sell's Potato Chip Co., 361 NLRB No. 23 (2014), an
employer decided that increases in health insurance deductibles
and decreases in reimbursement rates and health savings ac-
count contributions were needed to help save costs. It sent the
Union a reopener letter before the time period specified for
reopeners in the existing contract. The company met with the
Union over the proposed changes but nevertheless implemented
the changes without the Union’s consent. The Board found that
the Employer violated Section 8(a)(5) by implementing chang-
es during the middle of the contract term without obtaining the
Union’s consent and without following the procedures set forth
in the agreement’s reopener clause.
The General Counsel alleges that the Respondent unilaterally
changed and therefore breached the following provisions of the
collective-bargaining agreement in violation of Section 8(d).
(1) The obligation to recall and/or lay off employees in order of
seniority; (b) the obligation to make payments on behalf of
bargaining unit employees to the Union’s health and pension
funds; (c) the obligation to deduct and remit union dues; and (d)
the obligation to permit union representatives to visit the prem-
ises.
There is no question that in 2015, the Respondent failed to
recall its regular full-time staff that had been laid off at the end
of the 2014 season. Instead, the Respondent engaged a subcon-
tractor to provide employees for parties held during the winter
and then hired a group of other employees to replace the bar-
gaining unit employees. Thereafter, after recalling some but
not all of the regular full-time employees starting in August, it
laid them off again before the end of the season, while retaining
other employees who had less seniority. In my opinion, the
contract provisions relating to layoffs and recalls clearly and
unambiguously call for the application of seniority. This was
KNOLLWOOD COUNTRY CLUB 15
not done in this case, and the Respondent’s breach of the con-
tract was clear and unambiguous. I therefore conclude that in
this respect, the Respondent violated Section 8(d) and 8(a)(5)
of the Act.
Moreover, even if for some reason it could be argued that the
contract language is subject to interpretive differences, the fail-
ure to recall and/or lay off the regular full-time bargaining unit
employees in order of seniority, was a substantial change from
past practice. As this was undertaken without notice or bargain-
ing with the Union, I conclude that this unilateral change vio-
lated Section 8(a)(5) and (1) of the Act.
There is, in my opinion, nothing ambiguous about the provi-
sions of the contract that require the Respondent to make con-
tributions on behalf of bargaining unit employees to the Un-
ion’s health and pension funds. The Respondent points out that
under the collective-bargaining agreement, it is not required to
make such payments for “summer employees.” This is true, but
those types of employees should not have been hired in the first
place to displace the regular full-time employees and to deprive
the latter of their contractual seniority recall rights. As I have
concluded that the 17 full-time employees should have been
recalled in March 2015, their entitlement to backpay would
include any withheld contributions to the Union’s health and
pension funds. I therefore conclude that in this respect, the
contract is unambiguous and that the Respondent violated Sec-
tion 8(d) and 8(a)(5) of the Act.
With respect to the dues check-off provisions of the contract,
it is admitted that the Respondent decided to cease making such
deductions and to stop remitting those moneys to the Union.
The Respondent contends that it could do so because the con-
tract requires employees to sign authorizations permitting such
deductions. Again this may be true, but the record shows that
for many years, the Respondent has deducted and remitted dues
for its regular employees. There is no requirement in the con-
tract that employees reauthorize their check-off authorizations
on any periodic basis. These employees have worked at the
Respondent for a long time and some have worked there for
almost 18 years. Because the Respondent has deducted and
remitted dues and/or other periodic fees to the Union for such a
long time, I shall presume, in the absence of evidence to the
contrary, that those employees for whom dues and fees have
been deducted and remitted, have authorized the Respondent to
do so. Accordingly, I shall conclude that in this respect, the
Respondent has violated Section 8(d) and 8(a)(5) of the Act.
The General Counsel contends that by refusing access to un-
ion representatives on April 16, 2015, the Respondent breached
the access provisions of the contract. In this regard, the collec-
tive-bargaining agreement permits union representatives to visit
the facility for a variety of purposes related to representation.
Nevertheless, the contract requires, in the absence of an emer-
gency, that the Union give a 1-day notice of an impending visit.
The General Counsel argues that by past conduct, the Respond-
ent has waived the notice requirement. And it might also be
argued that the failure to recall the regular employees constitut-
ed an emergency. Nevertheless, those arguments relate to the
interpretation of the contract and a reasonable argument can be
made that the contract requires prior notice which was not giv-
en by the Union. Accordingly, in this respect, I shall recom-
mend that this allegation of the complaint be dismissed.
However, having found that the Respondent’s representative
told employees that he had called the police because they con-
gregated outside of the facility, I conclude that in this respect, it
violated Section 8(a)(1) of the Act. These long term employees
clearly had a right, pursuant to Section 7 of the Act, to concert-
edly ask when they were going to be recalled to work. There-
fore, they had a right to be present outside of the Respondent’s
facility to engage in this concerted activity, even if it occurred
on private property. As such, it is my opinion that a threat to
call the police to thwart this activity violates Section 8(a)(1) of
the Act. Roger D. Hughes Drywall, 344 NLRB 413, 415
(2005); ITT Industries Inc. v. NLRB, 413 F.3d 64 (D.C. Cir.
2005).
The General Counsel alleges that the Respondent “repudiat-
ed” the collective-bargaining agreement. As shown above, the
evidence indicates that the Respondent sought to make substan-
tial mid-term modifications in the collective-bargaining agree-
ment and that in other respects, such as dues check-off and
health and pension funds it sought to nullify those provisions.
Nevertheless, the evidence does not suggest to me that the Re-
spondent withdrew recognition from the Union and I cannot say
that I would go so far as to conclude that it attempted to com-
pletely repudiate all of the terms of the contract.
Having found that the Respondent has violated Sections
8(a)(5) and 8(d) with respect to various provisions of the con-
tract and having concluded that an appropriate remedy should
be issued, I don’t think that anything would be added to this
case by a conclusory finding that the Respondent also repudiat-
ed the contract.
The Refusal to Furnish Information
The General Counsel argues that the information sought by
the Union relates to the Employer’s notification that it would
rely on article 29 to seek a reduction in wage rates due to eco-
nomic distress.
On December 9, 2014, the Respondent advised the Union
that it was requesting a meeting pursuant to article 29 of the
collective-bargaining agreement. This clause permits a signato-
ry to the multiemployer agreement, to go before an arbitrator
who can reduce the contract wage rates upon a finding that the
company is in sufficient financial distress. The letter went on
to state that the Club had suffered a downturn in membership
and that; “if we do not hear from you by December 15, 2014,
we will assume you agree with our contention and we will re-
duce payments to employees.”
On April 22, 2015, the Union and the Respondent held a
meeting with their respective lawyers present. The Respondent
stated that the company was experiencing financial difficulties
because it had lost membership and had to make cutbacks and
adjustments. The Union’s attorney asked if finances were so
bad, how come the Club was building new facilities and mak-
ing other renovations. She asked how much money was being
spent on renovations. In response, the Respondent asserted that
the costs of renovations were not relevant and that the Union
was not entitled to such information. Regarding the possibility
of an article 29 proceeding, the Union asked if the employees
could be recalled while that proceeding was taking place. The
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
Respondent replied in the negative. The Union’s counsel stated
that if there was going to be an article 29 proceeding, the Union
would need information and pointed out that the Respondent
had not yet provided all of the information that had been re-
quested in December 2014. She stated that a new list would be
prepared and this was sent on April 29, 2015, with a followup
letter in July.
Notwithstanding the employer’s notification that it would
seek Article 29 relief, it never followed through. Instead, de-
ciding to throw caution to the winds, it engaged in self-help.
And in response to the Respondent’s actions of hiring replace-
ment workers and subcontracting bargaining unit work, the
Union did not follow through on its own set of grievances.
Instead, the Union, as was its right, filed the instant unfair labor
practice charges. Therefore, at this point in time, the infor-
mation requested is no longer useful for the purpose of any
contract enforcement procedure, either by the Union or the
Company. That is, with both parties having foregone arbitra-
tion, the information can no longer be utilized for the purposes
sought. Nevertheless, despite the current state of mootness, the
issue before the Board is whether the Respondent, at the time of
the requests, failed to timely furnish requested information that
was relevant for some legitimate purpose. Postal Service, 359
NLRB No. 4, slip op. at 4 (2012).
Where an employer, either in response to union bargaining
demands or in support of its own proposal, makes a claim of
inability to pay, a union is entitled to request and review the
employer’s financial records to assess and substantiate the em-
ployer’s representations about its financial condition. NLRB v.
Truitt Mfg. Co., 351 U.S. 149 (1956); Dover Hospitality Ser-
vices, 358 NLRB 710 (2012); North Star Steel Co., 347 NLRB
1364, 1369–1370 (2006); R.E.C. Corp., 307 NLRB 330, 332–
333 (1992).
As of December 9, 2014, the Union had reason to assume
that the Respondent would invoke arbitration under Article 29
based on an assertion that is equivalent to a claim of inability to
pay the contract wage rates. The possibility of an article 29
proceeding was further discussed at a meeting on April 22,
2015. Accordingly, in preparation for the possibility of such a
proceeding, the Union was entitled to find out the degree to
which the Respondent’s financial distress claims were valid and
to what extent, if any, the company’s actual finances would
support an argument to an arbitrator that its request for relief
should be granted.
The complaint sets forth those information requests that were
either not provided, were partially provided, or provided late.
These were as follows:
In the April 29, 2015 letter, the Union requested the events
calendars for 2013, 2014, and 2015. The General Counsel pos-
its that these calendars would show the events that took place at
the club during each month of each of those years and would
tend to show whether, over time, there was a diminution of this
type of work. It is conceded that the Respondent provided the
calendars for 2014 and 2015, but the Respondent did not pro-
vide the calendar for 2013. It is also asserted that calendars for
the months of January in 2014 and 2015 were not provided.
Union attorney Barker testified that the Union sought these
calendars in relation to the company’s claim of economic hard-
ship and that the calendars would be useful in either confirming
or disproving that claim.
With respect to the calendars, I think that there is some lim-
ited relevance to the Union’s request in light of the employer’s
inability to pay contention. I therefore conclude that because
the Respondent did not fully comply with the request, the Re-
spondent violated Section 8(a)(5) and (1) of the Act.
The complaint alleges that the Respondent failed to fully re-
spond to the Union’s request for the time cards for its bargain-
ing unit employees from March and April 2015. As to this
information request, the General Counsel asserts that the time
cards would show how much the Respondent was spending on
labor. Although one would think that the company’s audited
financial statements would be a good deal more revealing as to
its financial health, I suppose that this request could have some
bearing on the company’s expenses and therefore would be
relevant to its inability to pay claim. Accordingly, I conclude
that in this respect, the Respondent violated Section 8(a)(5) of
the Act.
By letter dated April 29, 2015, the Union requested the au-
dited financial statement for 2014. It also asked for financial or
operations reports that are provided to the Club’s members for
the years 2012, 2013, and 2014. And by letter dated July 24,
the Union requested the monthly profit and loss statements for
the current and the past 3 fiscal years.8
The evidence was that the Respondent, in May 2015, provid-
ed a copy of its 2013 financial statement. Thereafter, in Sep-
tember, the Respondent provided a draft copy of its annual
financial statement for 2014. It ultimately provided the final
draft of its 2014 financial statement on February 29, 2016. The
Respondent did not provide the Union with a copy of its 2012
financial statement.
Assuming that these union requests encompassed audited fi-
nancial statements for the years, 2012, 2013, and 2014, it seems
that the Respondent failed to supply the 2012 statement, but did
supply the 2013 report in a timely fashion. As to the 2014 fi-
nancial statement, it may be that this statement had not been
prepared by the company’s accountants until September 2015
and was not fully completed until early 2016. But the Re-
spondent did not proffer evidence suggesting that this was the
problem and in its absence, I shall conclude that in this respect
it violated Section 8(a)(5) of the Act. I also conclude that by
failing to furnish the 2012 financial statement, the Respondent
violated Section 8(a)(5) and (1) of the Act.
The April 29 letter requested disbursement ledgers for the
current year and for the preceding 3 fiscal years. In response,
the company provided its disbursement reports for 2013, 2014,
and 2015. It did not provide the 2012 report. As I shall assume
that these documents describe company payments made over
each of the years covered, they would be relevant to its claim of
inability to pay. It seems to me that these reports did not re-
quire the gathering of information in order to compile a yearly
summary. Therefore, it does not appear that providing the dis-

8 I am going to assume for purposes of this proceeding that any fi-
nancial and/or operation reports that are made available to the Club’s
membership would be the same or equivalent to its audited annual
financial reports.
KNOLLWOOD COUNTRY CLUB 17
bursement ledger for 2012 would have been onerous. Accord-
ingly, I conclude that in failing to provide the disbursement
ledger for 2012 the Respondent violated Section 8(a)(1) of the
Act.
At the meeting of April 22 and by letter dated April 29, the
Union requested: (a) agreements for leases relating to the op-
eration or management of the Respondent, the land upon which
it is located and/or the building in which the Respondent is
located in; and (b) any agreements for construction, renovation
or rehabilitation of any of the facilities, premises and grounds
for the current year and for the preceding 3 fiscal years.
As to the first of these requests, I frankly don’t see what rela-
tion there is between the ownership of the land and any leases
to the Respondent’s inability to pay claim. Does the Union
contend that the company’s financial problem could be solved
by selling the 18th hole? In any event, the General Counsel’s
Brief does not address this request and I shall assume that this
claim is dropped.
As to the second of these requests, attorney Barker testified
that the Union asked for information about construction and/or
renovation projects because it didn’t seem that the company’s
inability to pay claim was consistent with what looked like its
construction projects. In this respect, I can see how the Union’s
request for this type of information could be relevant to the
Respondent’s claim of financial distress. Therefore to the extent
that the company did not provide this information, I conclude
that it violated Section 8(a)(5) of the Act.
CONCLUSIONS OF LAW
1. By subcontracting out bargaining unit work, without no-
tice to the Union or affording it an opportunity to bargain over
the decision, the Respondent violated Section 8(a)(5) and (1) of
the Act.
2. By failing to recall regular full-time employees in accord-
ance with the seniority provisions of the collective-bargaining
agreement, the Respondent has unilaterally modified the provi-
sions of its collective-bargaining agreement during its term, and
having done so without the Union’s consent, it has violated
Section 8(a)(5) & (1) and Section 8(d) of the Act.
3. By failing to abide by the seniority provisions of the col-
lective-bargaining agreement when laying off employees, the
Respondent has, without the consent of the Union, unilaterally
modified the contract during its term, and has violated Section
8(a)(5) and (1) and Section 8(d) of the Act.
4. By unilaterally and without offering to bargain with the
Union, failing to recall employees in order of seniority and by
laying off employees without regard to seniority, the Respond-
ent violated Section 8(a)(5) and (1) of the Act.
5. By refusing to deduct union dues on behalf of bargaining
unit employees, and failing to remit them to the Union, the
Respondent, in the absence of the Union’s consent, has modi-
fied the collective-bargaining agreement during its term, and
has violated Section 8(a)(5) and (1) and Section 8(d) of the Act.
6. By refusing to make contributions on behalf of bargaining
unit employees to the Union’s health and pension funds, the
Respondent, in the absence of the Union’s consent, has modi-
fied the collective-bargaining agreement during its term, and
has violated Section 8(a)(5) and (1) and Section 8(d) of the Act.
7. By threatening to call the police and then calling the po-
lice when employees visited the Respondent’s facility in order
to concertedly protest the failure to recall them to work, the
Respondent violated Section 8(a)(1) of the Act.
8. By failing to fully and timely respond to the Union’s re-
quest for financial information in response to the Respondent’s
claim of inability to pay, the Respondent violated Section 8(5)0
and (1) of the Act.
9. The aforesaid violations affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
With respect to the subcontracting issue, it is recommended
that the Respondent be ordered to cease and desist from engag-
ing in subcontracting of bargaining unit work, absent good faith
bargaining with the Union. It is also recommended that to the
extent that bargaining unit employees were not offered em-
ployment for various functions, or recall to employment, or
were laid off as a result of such subcontracting, these employ-
ees must be made whole for any loss of earnings and other
benefits suffered. Backpay shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
at the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). Additionally, the Re-
spondent shall file a report with the Social Security Administra-
tion allocating backpay to the appropriate calendar quarters and
shall also compensate these employees for the adverse tax con-
sequences, if any, of receiving one or more lump-sum backpay
awards covering periods longer than 1 year. Don Chavas, LLC
d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014).
As to the failure to utilize contract seniority to recall regular
full-time employees or to lay off such employees, they must be
made whole for any loss of earnings and other benefits suf-
fered. In this respect, backpay would run from the dates in
March 2015 that employees would reasonably have been ex-
pected to be recalled, until the dates that they were actually
recalled. Also, to the extent that employees were laid off out of
contractually defined seniority in the autumn of 2015, the
backpay period would be the dates of their layoffs to the dates
that they normally would have been laid off or until December
31, 2015, which is the date that the season normally ends.
Backpay for this set of employees shall also be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest at the rate prescribed in New Horizons 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky Riv-
er Medical Center, 356 NLRB 6 (2010). Additionally, the
Respondent shall file a report with the Social Security Admin-
istration allocating backpay to the appropriate calendar quarters
and shall also compensate these employees for the adverse tax
consequences, if any, of receiving one or more lump-sum back-
pay awards covering periods longer than 1 year. Don Chavas,
LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014).
With respect to the failure to make contributions on behalf of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
employees to the Union’s pension and welfare funds, the Re-
spondent must make these contractually required payments in
accordance with the terms of the collective-bargaining agree-
ment. As to this aspect of the Remedy, the make-whole remedy
shall be computed in accordance with the practice set forth in
Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), plus daily compound interest as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010). Fur-
ther, if any employees have incurred losses because of the Re-
spondent's termination of payments to the Welfare Fund, or if
the Union has paid such employee claims, it is recommended
that the Respondent reimburse, with interest, either the employ-
ee or the Union for such losses. See Kraft Plumbing & Heating,
252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir.
1981); Oakland Physicians Medical Center, LLC d/b/a Doc-
tors’ Hospital of Michigan, 362 NLRB No. 149 (2015); and
Brooklyn Hospital Center, 344 NLRB 404 (2005).
With respect to the failure to deduct union dues and fees and
to remit such moneys to the Union, the Respondent must make
these contractually required payments to the Union, with inter-
est in accordance with the practice set forth in Ogle Protection
Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), plus daily compound interest as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). However, if the
Respondent can prove at the compliance stage of this proceed-
ing, that any of the employees for whom dues were not deduct-
ed had never signed a dues check-off authorization, then the
Respondent would be excused from making such payments on
behalf of those particular persons. It should be kept in mind
that it is the Respondent that would have the burden of proof.
Regarding the failure to furnish information violations, the
Respondent shall be ordered to cease and desist from refusing
to furnish financial information, if in the future, it makes a
claim of inability to pay wages or other terms and conditions of
employment. However, the claim in this case, is essentially
moot. This claim of inability to pay was made in December
2014 and repeated in April 2015 in connection with the Re-
spondent’s assertion that it might seek arbitration pursuant to
article 29 of the contract. This provision allows an arbitrator to
lower the contractual wage rates upon a showing of undue fi-
nancial hardship. Notwithstanding the company’s notification
that it might initiate that procedure, it never actually did so.
And since the Union’s need for financial information was tied
to the company’s intention to utilize the article 29 procedure,
that need no longer existed after it became clear that the Re-
spondent did not, in fact, intend to initiate that procedure. When
the company took self-help action, the Union filed these unfair
labor practice charges, which put the issues and the remedy
within the sole jurisdiction of the Board. And if the General
Counsel needs to acquire any information for purposes of de-
termining backpay, she has the means to do so.
In light of this unusual set of circumstances, I do not think
that the information requested is any longer relevant to the
purpose for which it was sought. Therefore, despite issuing a
cease and desist order, I shall not require the Respondent to
furnish this information to the Union at this time.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended 9
ORDER
The Respondent, Knollwood Country Club, Elmsford, New
York, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Making mid-term modifications in its collective-
bargaining agreement with Unite Here, Local 100 by (i) failing
to make contributions to the Union’s pension and welfare
funds; (ii) by failing to check off and remit to the Union, dues
from employees within the bargaining unit; and (iii) by refusing
to use seniority as required by the collective-bargaining agree-
ment with respect to layoffs and recalls.
(b) Subcontracting out bargaining unit work without prior
notification to the Union and without offering to bargain with
the Union.
(c) Refusing to furnish in a complete and timely manner, the
financial information requested by the Union where the Re-
spondent has claimed an inability to pay the wages and benefits
set forth in the collective-bargaining agreement.
(d) Threatening to call the police and calling the police when
employees concertedly visit the Respondent’s premises in order
to protest their failure to be recalled to work.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the rights guaranteed to them by Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the purposes and policies of the Act.
(a) Resume making contributions to the Unite Here Local
100 pension and welfare funds as required by the collective-
bargaining agreement.
(b) Resume checking off and remitting dues and other fees to
the Union in accordance with the check off provisions of the
collective-bargaining agreement with Unite Here Local 100.
(c) Resume utilizing seniority as set forth in the aforesaid
collective-bargaining agreement for all purposes including
layoffs and recalls.
(d) Make whole in the manner set forth in the Remedy sec-
tion of this Decision, any employees who have suffered a loss
by virtue of the failure to make contractually required contribu-
tions on their behalf to the Unite Here Local 100 pension and
welfare funds.
(e) Make whole in the manner set forth in the remedy section
of this decision, any employees who have suffered a loss by
virtue of the unilateral subcontracting of bargaining unit work.
(f) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(g) Within 14 days after service by the Region, post at its fa-

9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
KNOLLWOOD COUNTRY CLUB 19
cilities in Elmsford, New York, copies of the attached notice
marked “Appendix.”10 Copies of the notice, on forms provided
by the Regional Director for Region 2, after being signed by the
Respondent's authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since February 7, 2015.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated: Washington, D.C. June 9, 2016
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.
WE WILL NOT make midterm modifications in our collective-
bargaining agreement with Unite Here, Local 100 by (i) failing
to make contributions to the Union’s pension and welfare
funds; (ii) by failing to check off and remit to the Union, dues
from employees within the bargaining unit; and (iii) by refusing
to use seniority as required by the collective-bargaining agree-
ment with respect to layoffs and recalls.
WE WILL NOT subcontract out bargaining unit work without
prior notification to the Union and without offering to bargain
with the Union.
WE WILL NOT refuse to furnish in a complete and timely
manner, financial information requested by the Union where we
have claimed an inability to pay the wages and benefits set
forth in the collective-bargaining agreement.

10 If this Order is enforced by a Judgment of the United States Court
of Appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
WE WILL NOT threaten to call the police or call the police
when employees concertedly visit our premises in order to pro-
test their failure to be recalled to work or to engage in other
protected concerted activity.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the rights guaranteed to them
by Section 7 of the Act.
WE WILL resume making contributions to the Unite Here
Local 100 pension and welfare funds as required by the collec-
tive-bargaining agreement.
WE WILL resume checking off and remitting dues and other
fees to the Union in accordance with the check off provisions of
our collective-bargaining agreement with Unite Here Local
100.
WE WILL resume utilizing seniority as set forth in the afore-
said collective-bargaining agreement for all purposes including
layoffs and recalls.
WE WILL make whole any employees who have suffered a
loss by virtue of the failure to make contractually required con-
tributions on their behalf to the Unite Here Local 100 pension
and welfare funds.
WE WILL make whole any employees who have suffered a
loss by virtue of the unilateral subcontracting of bargaining unit
work.
KNOLLWOOD COUNTRY CLUB
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/02–CA–150410 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.